Social Praxis

Sunday, April 20, 2014

Eclipse At Noon: Shadows Over India's Conscience

Gopal Krishna Gandhi

(Full text of the 15th D.P. Kohli Memorial lecture)

I am grateful to Sri Ranjit
Sinha, Director CBI, for giving me this valuable chance. And I take this
opportunity to pay my compliments to another distinguished former Director of
the CBI, an esteemed friend of many years, Shri R.K. Raghavan in whose tenure
this memorial lecture series was instituted.

It is a privilege to be asked to
give this lecture in memory of an outstanding police officer, administrator,
the first and founding director of the Central Bureau of Investigation under
its post-Independence dispensation. Shri D.P. Kohli was a remarkable
professional and an epitome of integrity. CBI officers must seek to emulate
him. I offer Shri Kohli’s memory my tribute, and his legacy my admiration. To
the tribute that I pay to the founder, I join my salutation to those brave
policemen and women who have faced crime, terror and intimidation in the course
of their duty, so often laying down their lives in the process.

Not a day passes when India’s
police forces do not court danger, even death, so that those they are meant to
guard, including the Indian state itself, stay unharmed. I can never forget the
young brave-heart, who is still very much in the police establishment, who was
the motorcycle outrider in the Governor’s convoy in Kolkata one drizzly night. A
road-laying crane had been parked in the dark without any warning lights and
its iron cordon hung invisibly at neck-level right across the road. The
officer, moving briskly on his motor cycle was caught across his neck by the
cord and thrown into the air. He was up on his feet in seconds and by the time
my car came up to him, he was, despite a severe injury to his helmeted head and
neck, all ready to resume his duty.

If every citizen has this young
policeman’s pluck and sense of duty, we would be a far happier and safer and
stronger nation today.

With the honour of being asked to
give this lecture, comes an opportunity to reflect on matters pertaining to the
state of public ethics and accountability in our times.

‘It was the best of times',
Dickens says in the opening lines of A Tale of Two Cities, ‘it was the worst of
times, it was the age of wisdom, it was the age of foolishness, it was the
epoch of belief, it was the epoch of incredulity, it was the season of light,
it was the season of darkness, it was the spring of hope, it was the winter of
despair...’

I echo those lines time and
again.

For us in India, in ever so many
ways, this is the best of times.

Our democracy is in bloom. While
in countries around us, democracy has taken bruising and even battering, our
elections are in progress to elect the next Lok Sabha, the 16th in a row.
Millions are participating in the proceedings with what can only be called
elan. They know the process thoroughly and can be said to be post-doctoral
experts in it. They know how to re-endorse earlier verdicts ; equally, how to
reverse them. They can return people and parties to office with generosity ;
equally they can throw them out of it without mercy. Illiterate they may be,
and poor as well, but once in the booth, they are monarchs. We are a democracy
with a highly powerful monarch — the voter.

And our media, is that monarch’s,
the voter’s, which means our, security guard. Hats off to our media for
performing that task with amazing diligence.

Our economy has some phenomenal
successes going for it. I will not impose statistics on you. But this I will
say and you will agree with: There is more prosperity now than ever before.
More people own or rent ‘pucca’ homes than before. More people travel by road,
train and air than before. More people travel for leisure than before. More
people spend on entertainment than before. More people eat better than before,
dress and buy goods and services better than before. Hardly anyone goes without
footwear now, or a watch. And of course almost every home , even if it does not
have other essential furniture, has a television. The middle class believes in
using its money for raising comfort levels. Refrigerators are not seen as a
luxury, nor small air conditioners or coolers. Almost every Indian has a mobile
phone, if not two. Among those who do not use mobile phones, very few go
without it because they cannot afford it.

Indian science has made a name
for itself. From the micro and the nano to the mega, we make and use what we
need. We inhabit space, course through it, with satellites that help us
transact life down on earth better, more safely than ever before.

Our arts are at a peak. Be it the
classical arts or the folk arts, be it cinema or literature, we are in an era
of high achievement. The world — not just NRIs but other nationalities — looks
to our performing artists with awe, invites them and celebrates their genius.
Our writers are in great demand, are published and read more than ever before

Our literary festivals attract
the best writers from other nations. Our painters and sculptors, photographers
and illustrators are highly esteemed in art circles, with high quality
catalogues being prepared for their expositions the world over.

Our judiciary, we can be truly
proud of. It is independent and fearless. Its interventions in many matters
have been crucial to the quality of life in our Republic. In all this, these
have to be and are, the best of times.

This is our high noon.

And yet…

These also have to be the worst
of times.

Our democracy is large, vibrant,
but is also deeply flawed. Size and scale cannot and do not in themselves
validate a democracy. There is something called quality also. The monarch, the
voter, is powerful but his power is constantly subverted by blandishment. Money
is at our democracy’s throat. Money can and does do worse. It can abduct,
assault. It can finance hurt, it can fund harm, it can injure and manage to
look injured. It can purchase death. Currency notes come into the election
bazaar first in container and cargo quantities, then in truck-loads, going into
wholesale, small retail and finally in attaché, thailaa, jholaa and jeb-sized
portions, every five years at the least and often oftener than that. They
originate either legally, through licit company donations or come from a myriad
sources which, necessarily and unavoidably, go back to our natural resources
such as mines, forests and land. Illegal transactions in all these yield
harvests of black cash and this is disgorged on people in jhuggis, jhompris and
jhopad-pattis, right amidst tonnes of garbage and, within inches of it, cook,
wash, sleep and being human, procreate, give birth and die in. It is on these
that politicians descend at election time, laden with cash and hooch, to buy
votes. Dr Ambedkar had spoken of how this India may well explode and blow up
our Constitutional edifice.

Why and how that has not happened
yet defies my understanding.

There is a memorable quote from
Mark Hanna: “There are two things that are important in politics. The first is
money, and I can’t remember what the second one is”.

I can tell you what you already
know about the second thing. It is called bullying. It is an open secret that
certain kinds of services are co-opted near election time by candidates. These
have to be called, for want of a better phrase, goonda services. Goondas are
part of society; they are one of us. They are a floating resource, to be hired,
for a sum. Their skill is intimidation. Their wherewithal, via money, of
course, and often via narcotics as well, is the illegal firearm

By an estimate which is slightly
dated now, there are not one million, not four million, not ten million but at
a conservative estimate, 40 million illegal small arms floating around all over
the land.

The Election Commission has to be
congratulated, thanked, embraced, for being as fearless as it is, despite all
this. Our uniformed services, headed by the police and various para-military
agencies, need to be thanked and saluted for keeping lawbreakers, law-twisters,
law-manipulators and law-defiers in check.

But who is to check the collapse
of true, far-sighted leadership and its degeneration into leaderbaazi ? Leaders
are too few now, leaderbaazes, innumerable. Leading looks at the far horizon,
leaderbaazi, in love like the house fly with its own nose, sniffs at the offal
of instant gains.

Leaderbaazi will do deals on
principles, provided the details of its convenience are protected.

We are, as I said at the
beginning of this lecture, seeing the blooming of an election.

But let us not celebrate that
without being aware of the fact that there is a strange stillness in the air.

Marine geographers have a word
for it — the Doldrums. The word signifies a stupor, in which everyone and
everything is listless, stagnant and immobilized.

Coleridge describes the state of
the Pacific Doldrums in The Rime of the Ancient Mariner:

All in a hot and copper sky,

The bloody Sun, at noon,

Right up above the mast did
stand,

No bigger than the Moon.

Day after day, day after day,

We stuck, no breath no motion;

As idle as a painted ship

Upon a painted ocean.

The ship of our nationhood,
during these election days, is meant to be moving. But is it moving at all ? No
one quite knows, no one wants to speculate on where, towards what port, we are headed
if we are headed anywhere at all.

One asks in Shailendra’s words
and Mukesh’s voice animated by the one and only Raj Kapoor:

Manzil kahaan?

Kahaan ruknaa hai?

To find the answer with the
humour and sadness of resignation:

Uuparvaalaa jaanay-ay-ay-ay

Uuparvaalaa jaanay.

Dictators have been wafted up by
people voting democratically.

The ballot box can receive the
faith of innocence and emit a genie. It can receive trust unseeingly, disgorge
its betrayal unblinkingly.

That receptacle, now a machine, is
neutral to the ethics of its arithmetic. It is concerned only with numbers.

And so, for aught we know, the
painted ship will bestir itself and move into what , begging pardon of the
Republic of Trinidad and Tobago, I would call Port au Pain.

Let us realize that the Doldrums
feeling is true but is true only as a feeling.

In actual fact, beneath the
surface stillness, there is a great frenzy astir, a frenzy to bring to India’s
helm, the reign of an ethnic majority, of a sectarian bigotry, of a denominational
autocracy. And all in the name , the very specious name, of ‘strength’.

And here I must say that sections
of the media have become trumpeters of what they see as the coming change. We
had heard of paid news. But this is free advertising. The high noon of the free
press in India makes its own eclipse-by-ink and through the small screen.

So, this best of times for
democracy can become the worst of times for democracy as well.

Our economy is startling if you
do not want to see its other side. If you see that side, you will see it is
schizophrenic. Corporate greed has crossed all bounds, as has corporate
tastelessness. We used to talk of black money as a parallel economy and so it
continues to be. But Reliance is a parallel State. I do not know of any country
where one single firm exercises such power so brazenly, over the natural
resources, financial resources, professional resources and, ultimately, over
human resources as the company of the Ambanis. From Ambedkar who spoke of
economic democracy to Ambani who represents a techno-commercial monopoly of
unprecedented scale, is a far cry indeed.

Who is to ask why, in such a
situation, farmers commit suicide by the hour, dispossessed rural poor migrate
across the country looking for livelihood like cattle in a drought do, looking
for water, why infant mortality, infant malnutrition, childbirth related deaths
of mothers and female foeticide remain the stubborn ogres they are?

Who is to ask that ?

Yes, the mobile telephone is a
fantastic asset. But while we make the calls, someone makes the money. 2G
Spectrum is a description that arouses deep pride, and deep distrust.

And as for Indian science, that
pride of India, is there something missing, something amiss ?

I believe there is, and it is
called a transparent and accessible science policy. Today, science policy is
seen as something of a mystery, a State-secret, almost.

Its nurturing is as if in an SEZ,
a privileged area, gated and cordoned off. This is singularly unfortunate
because science has worked wonders for us, reduced drudgery, enhanced ergonomic
ease, improved productivity on farm and fishing fields, saved lives like that
of fishermen out at sea who, thanks to satellite warnings, can turn back when
the weather grumbles into a storm or rages into a cyclone. And yet, science
policy remains beyond the ken of us, simple folk, abstruse things like the 123
Agreement of course being high Sanskrit. I am reminded of a poem, a nursery
rhyme, really, without a known authorship. It goes:

We have a secret, just we three

The robin and I and the sweet
cherry tree

The bird told the tree and the
tree told me

And nobody knows it but just us
three.

Of the holy priest, it has been
said that he holds the Divine Secret in his closed fist, his gyana-mushti. Time
has come for the scientist to open his vigyana-mushti. We cannot be in awe of
that closed fist.

Transparency apart, I wonder why
it is that Indian science which has done such wonders for us, is yet to make an
impact on what Nehru used to call the scientific temper. Superstition has
increased exponentially in our country.

I value the affection and faith
of those who tie strings and charms to my wrists for love and care of me. But
the rings and strings on the fingers and wrists of our politicians are signs of
their fear psychoses, insecurities and desperate placatings of benign stars or
for the averting of evil eyes.

Such are the guilty consciences
and insecurities of our political class that next to lawyers, the expertise
most consulted by politicians is that of astrologers. If our political class
look to big money for elections and to big planets for their safety and
security, who do we look to ?

But India has the foulest
reputation imaginable in the world for the way its men in the national capital,
particularly, gawk at, grope and molest women visitors from overseas. This of
course is only another manifestation of the way huge numbers of the Indian male
are pre-dispositioned vis-à-vis the female body. If a single artist from India
were to experience anything like that in Paris, New York or Berlin, all hell
would break loose in India, with our media bursting aortas and larynxes. But
the country as a whole is being phlegmatic about this, as indeed it is , on the
larger issue of respect for women.

Nirbhaya’s tragedy is unending.

This has to be the worst of
times.

It is our noon, all right, but we
are seeing a grahan of no ordinary scale casting a shadow over it. I use the
word grahan or eclipse not astrologically but astronomically, as a shadow that
obscdures the light of our collective conscience.

We are going through an ethical
drought, a valuational famine, a desertification of the finer sensibilities of
civilisational living.

Paradoxically, the number of
Godmen and, to a lesser extent, Godwomen, is increasing in algebraic leaps.
They even compete with each other, through giant hoardings, advertisement
blitzes, carefully-orchestrated interventions in natural calamities, political
crises and and road-shows. Some decades ago, there was the odd Dhirendra
Brahmachari and Chandraswami. Now you find them behind every tree.

Some of them, going by their
elaborate attires, look like trees. There is an apt phrase for them :
Dharma-vanijyakas, merchants-of-religion.

This should have been the age of
wisdom, it has turned out to be the age of foolishness.

This should have been the season
of light, it has turned out to be the season of darkness.

One of the great blessings of our
Republic, which goes towards the making of our high noon, is the freedom and
stature of our judicial system. The independence and high calibre of our
judiciary is, as I said, to something to be proud of although sometimes it can
shock us by turning the clock back and mirror the Taliban or the most
retrograde of Khap Panchayats by judgments like the recent one on Section 377
of the IPC. One area of utter darkness , is our prisons. Changing their name to
Correctional Homes is a step in the right direction but it can be very
self-fulfilling. The fact remains uncontested that our Correctional Homes are
bursting with under-trials, many of who may well be not guilty. While I know
some officers do all they can to make these Homes civilized, society as a whole
cares a two bit for what goes on within those walls. I would have thought some
of our VIPs who have spent spells of varying duration in these Homes would have
come up with some innovative ideas for reform. But no, their priorities are
obviously different.

Under a recent imaginative
amendment to the Cr P C , certain categories of undertrials can be enlarged on
a personal bond, ‘Can be’ is one thing, ‘have been’ is another. Why should this
provision not be used ? Cussedness, is the only answer.

I must come now to a related
subject.

We may be the land that has given
birth to the Buddha, Mahavira and Gandhi. The world respects us for the
doctrine of non-violence that is associated with those names. But let us not
deceive ourselves into believing that we are a non-violent people ; we are not.
We are as violent as any, only more, in the refinements we have wrought on our
violence, the embellishments we have given to it, the manicuring and pedicuring
we have done on that beast called custodial torture. Every city and town has
jails, thanas and lock-ups and every jail, thana and lock-up has cells into
which the miserable wretch to be tortured enters like some animal may enter the
slaughter-house. Torture, in one degree or another, seems to be part of an
entrance ritual, a rite. This is a blot in our national life that can only go
if the police establishment comes up with the leadership needed to stop it ;
not otherwise.

The issue of under-trials and of
torture cannot be taken up in isolation without acknowledging a major fact. I
am sorry if what I am going to say comes as something of a startler:

A major wedge of the eclipse over
India’s noon is the debilitation over the criminal justice system in India. It
has all but collapsed.

There has been a steady, and now
a steep, decline in the ability of the system to deal with crime. The machinery
grows, crime grows. But the latter, remaining one step ahead.

Attempts to preserve the
legitimacy of the system, however, have produced ironic phenomena such as
scapegoating , which amounts to saying ‘Go find someone, anyone, but there
needs to be a conviction’. I cannot but deplore another side-effect of panic
legitimizing, namely, the tendency towards social control and control of
political differences through the use of criminal law. This is the single most
deplorable misuse of an instrumentality, which makes null and void all claims
for democratic dissent and institutional independence — the hallmarks of a
Republic that is wedded to the rule of law. This leads to strange and
disturbing anomalies such as building layers on existing, troublesome layers
and thereby leaving the latter intact.

The result is there is the CBI
where the police cannot work, the SIT where the CBI is also feared to be
compromised Or, narco-analysis where routine investigation has lost its way and
so the ghoul called torture and the impunity that sanction gives to agencies of
state remain as they are. There has been too much side-stepping and too little
addressing.

And too much action by reaction,
by which I mean, too much store being placed on social latencies, as distinct
from judicial discrimination. How much in an Aarushi verdict or an Afzal
hanging is influenced by yesterday’s, today’s and tomorrow’s possible headline
? Is some social appetite being gratified by legal recourse ?

Is popular applause a player ?

Is popular disapproval a player
as well ?

Are the approval and disapproval
of bosses a factor ?

In other words, are fear and
favour, players ?

Here, I might be permitted the
liberty of some frank opinion-sharing.

Let there be no doubt about one
thing : The CBI has a very mixed image. Not all of it is flattering. It is seen
as Government’s hatchet, rather than honesty’s ally. It is often called DDT—
meaning not dichloro-diphenyl-trichloroethane, the colourless, tasteless,
odourless insecticide it should be, but the Department of Dirty Tricks.

This perception, howsoever valid
it might be, must change. I will make bold to say it will change, because the
popular mood in the country in the matter of corruption has changed. The
post-RTI India is an altogether India. Every village in India has heard of the
RTI and, what is more, it has used RTI, sometimes frivolously, sometimes
perversely but, in the main part, transformationally and cleansingly. The
RTI-trained public is no longer going to take corruption as a standard feature
of the administration. It will expect, prod and make the CBI be an instrument
of change. The CBI is going to play a big role in the future of India’s public integrity,
India’s administrative ethics and India’s valuational self-image.

It is important, therefore, that
the CBI establishes a partnership with the people of India. At present, the CBI
and the people of India are poles apart. The CBI is clothed in opacity, then
ornamented by secrecy and finally perfumed by mystery. Thus has to change. For
a short time, the CBI came under the RTI Act. The heavens did not fall during
that time. But the triple wrappings of opacity, secrecy and mystery made it
move to be taken out of the purview of the RTI Act. This is a great pity. The
CBI is about investigations into corruption and certain crimes. It is not a
security or intelligence agency. And even if some aspects of its investigations
needed protection against disclosure, there are enough provisions under the RTI
Act’s exemption clauses to have come to the CBI’s aid. But to remove the CBI
from the purview of the RTI

Act altogether is, to my mind,
not just un-transparent but unwise and ultimately harmful to the CBI’s future
as a people’s partner in the resistance to corruption and crime. The CBI has
nothing to lose and everything to gain by partnering the people of India.

Especially when the CBI has to
contend with the politically powerful, it can only gain by having an overarching
partnership with the ultimate rulers in a democracy, the people.

This is where the question of its
autonomy comes in. Let me say at the outset that I want the CBI to be
spectacularly autonomous. Spectacularly, but not sensationally. Let me explain.
I would like the CBI not to be under the Government for then it would have no
autonomy, but I would like it to be accountable to the Republic. You might ask
‘But the Republic is a vague term ; be specific’. And so, very well, let me say
I would like the CBI to be under the Lok Pal, just as the Army is under the
Defence Minister. Our Defence Forces are our ride because they are so very
specialized, skilled and singular. But they are under civilian control. The
Director of the CBI, like an Army or Air Force or Navy Chief, should be totally
independent professionally but not a loose cannon.

The Director CBI should be a
phenomenal instrument, not a self-operating robot. He and his Bureau should be
guardians of the law, never a law unto themselves. The government’s
apprehension is that an autonomous CBI could become a reckless CBI. In this
apprehension, all political incumbents of office are on the same page. What is
not said in as many words but is clearly at the back of this thinking is that
the Director of a totally autonomous CBI could become an independent centre of
power, a demi-God with a moral whip. And then the allied thought: Supposing
such a Director then goes on to become popular with the public — unthinkable !

The fear is not unfounded but is,
I believe, given currency to evade the issue of autonomy. The India which could
speak its mind to Mrs Indira Gandhi’s emergency in no uncertain terms and
defeat that formidable Prime Minister in the elections is not going to let a
police official who grows too big for his halo get away with it. Just as no
dictator has a chance of surviving his or her excesses in India . No
self-styled strong politician in India can pass off as Bharat-ka-Rakhvala
unless he is Khud-ki- Seema-Rakhnevala. That being so, no police official,
howsoever strong will be allowed to convert his strength into a monopoly over
power, by the people of India. Let me return to the subject of investigations.
CBI investigations are often directed against very senior government officials
and politicians who wield great influence. They have to be handled judiciously
and without fear or favour. This is why the CBI requires autonomy and an
assurance of protection against the capriciousness of highly placed
individuals. Unfortunately, but predictably, successive governments have been
reluctant to sanction that order of autonomy.

And this is where, as a citizen,
I would say ‘Thank God for the Judiciary’. Thanks to vital Supreme Court
interventions , since the 1997 Hawala case, the CBI has come to have a certain
modicum of autonomy in operations. And yet, there are anomalies like the Single
Directive which requires government permission to conduct preliminary enquiries
against officers of the rank of Joint Secretary and above, government sanction
for prosecution and government permission to prefer appeals against Court
acquittals.

All generalisations have
exceptions and the generalization that I am about to make has its exceptions
too but let me say it plain: The standard politician does not and will never
like an autonomous CBI. There is an irony in this. The politician in office has
been elected by the people, the people would by an large like the CBI to be
free of political control, but the politician is loath to let go. The
politician, especially the politician in office, would want to continue to
employ various methods to intimidate or influence CBI officials and would
therefore be guilty of diluting CBI independence. To put it in conversational
Indian-English, our politicians will be like that only. The glib manner in
which one hers politician of lmost every party say that if voted to office or
voted back to office they will see to it that so-and-so will be in jail shows
how they take the system for granted. Such politicians would want the CBI to be
its hatchet, falling on whom he wants it to fall, when he wants to fall, and
with the force he wants it to fall with. This is no surprise. After all the
politician in office wants to use all the compulsories and optional of power
available to him. But why should the CBI not resist that ?

Just as officials have their pet
loves and pet hates among politicians, politicians have their favourites and
their bête noire- s among officials. There is justified criticism of CBI
highhandedness and lack of sensitivity to loss of reputation of senior members
of the bureaucracy against whom needless enquiries can get initiated.

Whether to settle personal scores
against political adversaries or to force independent civil servants to fall in
line with an unscrupulous Executive, pressure does get to be exerted over the
CBI. No political party is a saint in this matter. But the CBI cannot afford to
be complicit in this capriciousness. It must resist the unethical overtures.

Talking of complicity, there is
the temptation to bring down reputations of civil servants through unethical
leaks to the media in real time during the course of investigations. This is
despicable. If the Director and his deputies do not themselves get swayed by
sensationalism, they can resist this temptation. They must realize that the
author of today’s faucet leak can be the subject of tomorrow’s shower.

In the transition between today’s
CBI and a truly autonomous CBI under a Lok Pal, the CBI should be able to say
‘No, sir’ or ‘No, madam’ to the politician giving the CBI a wrong signal, a
wrong nod, a wrong pat or a wrong wink. I would even say, if a LokPal turns out
to be made of the same common clay as politicians and becomes whimsical ,
capricious or tendentious , that day the CBI should be able to say the same ‘No’
to that august personage. And that is when partnership, transparent and strong,
between the CBI and the people will strengthen it. The CBI should be able to
say another ‘No’ as well, that is, to in-Service lollipops or a post-retirement
cookie in the shape of a post-retirement job. The CBI has to be the nation’s
inner monitor. But it can be that only when it has an inner monitor within
itself as well.

When it does that routinely, a
major slice of the eclipse over the Indian noon will recede.

We need an autonomous CBI, not a
self-seeking behemoth. But the fear of such a monster should not be used to
perpetuate the status quo.

What I am advocating is true, not
nominal autonomy with appropriate accountability to the Republic, not
accountability to the power centres of the day plus more accountability to the
powers to be behind those power centres plus even more accountability to the
unseen influence-wielders on the powers behind the power centres . This
delicate balance between autonomy and accountability calls for sobriety on the
part of the CBI and civility on the part of the State.

The State in a liberal democracy
has to have institutions of conscience. The CBI is an institution of
conscience. It cannot be gagged when the State wants to wish something away,
made to scream when the State wants to declaim something. A conscience works
according to its own dynamics, not at someone else’s dictates. If it does the
latter, it is not a conscience but His Master’s Voice.

At the same time, a conscience should
not think it is a loud speaker. A conscience that becomes too fond of its own
voice, loses its value, its appeal. It loses its efficacy, because it is then
self-serving

CBI officers need to be respected
by the community, not held in some kind of awe or fear. And respect has to be
earned, not commanded.

From time to time there have been
complaints of lack of integrity among CBI officials themselves.

Disciplinary action, including
criminal action, has been taken against delinquent officials. This has had only
limited impact. Instances of CBI corruption continue to be reported, even
against senior CBI officers. This is more than sad because this is a case of
the doctor falling prey to a contagious disease by his own ways.

These are Golden Jubilee thoughts
the CBI may like to ponder.

These anxieties are part of the
eclipse that is creeping over our golden noon.

It is said one should never watch
an eclipse without shading the eyes, lest they get scorched. Let us shade our
eyes, by all means, but let us not avert our eyes from the shadow over our
consciences, if only because it is our own wooden obduracy , our inertia and
our smugness that is casting it. And if we are to see it end, it is we have to
do something about it.

In the preparation of the portion
on the criminal justice system and the CBI in this lecture, I have benefited
from dialogues with Smt Usha Ramanathan, Sri R K Raghavan, and Sri Nikhil Dey.
I acknowledge their assistance gratefully. But they do not necessarily share
all the views expressed by me here nor, indeed, those held by each other.

Saturday, October 5, 2013

As per the decision of
the State Executive Committee of the Bandi Mukti Committee a fact finding team
visited Darjeeling hills on 18th and 19th September, 2013
to have an objective assessment of the situation relating to arrest of
political leaders and activists of Gorkha Jana Mukti Morcha (GJMM) as well as
common participants in the recent agitation in support of their long-standing
demand of separate statehood.

Fact Finding Team (FFT)
on behalf of the Bandi Mukti Committee, led by the State Secretary Sri Chhoton
Das, comprised the following other members:

One of the
Vice-Presidents of the State Committee Prof. Ajit Kumar Ray, State Committee member
Dr. Arunkanti Biswas, State Executive Committee members Sri Bhanu Sarkar and
Sri Ratan De, Joint-Secretary of Darjeeling district Bandi Mukti Committee, Sri
Indranil Bhattacharyya and members of Darjeeling district committee Sri Arun
Ghatani and Sri Palan Chanda.

At
Kalimpong on 18th September 2013:

After reaching Kalimpong in the morning of 18th September, the
team met with Mr. Mohan Porel, Secretary, Kaliburang Unit of
Communist Party of Revolutionary Marxists (CPRM), Mr. J. B. Rai, Vice
President, Joint Action Committee, Mr. Sudip Pradhan, a member of CPRM, several
members of GJMM Kalimpong unit and common citizens in presence of
representatives of printing and electronic media at CPRM Kalimpong office.
After a brief introduction on team’s purpose of visit made by Prof. Ajit Kumar
Ray on behalf of FFT, the team had a long dialogue with all present there and
took note of the submission made by them. As Prof. Ray clarified in his
introductory explanation that the purpose of the visit of the FFT was neither
to support or to oppose the issue of Gorkhaland movement, the dialogue and
enquiry was confined only to collect facts on arrest of political activists, atrocities,
if any, by administration and law-enforcing agencies, condition of family
members of arrested activists, legal nature of charges against them, incidents
of violation of statutory procedure, if any, while arresting etc.

Being informed of the
visit of the fact finding team of Bandi Mukti Committee, the elected
representative from Kalimpong in West Bengal assembly, Mr. Harka Bahadur Chettri
came to meet the team and submitted his views before the FFT. Being invited to
meet a full delegation of GJMM in their Kalimpong office, FFT went to GJMM
Kalimpong office where advocate Mr. L. M. Chettri, who has been looking after
legal cases against their activists, briefed the team on the total scenario and
submitted a complete list of arrested activists who are in jail custody, police
custody or granted bail along with specific charges against them in Kalimpong
subdivision.

The team then went to
meet one of the arrested activists associated with GJMM Mr. Barun Bhujel, an
elected Municipal Commissioner from Ward no 16 of Kalimpong Municipality. He
was brought to be produced in the court of Hon’ble sub-divisional magistrate
Mr. Kamal Sarkar from Jalpaiguri jail. When Mr. Bhujel was brought outside of
Magistrate’s court room, members of FFT attempted to talk with him. Hon’ble
magistrate, however, denied the permission and the team could not complete the
discussion with him. However, the team had
a very revealing discussion with Mrs. Sabita Bhujel, wife of Mr. Bhujel, who
came to court with her little daughter for making arrangement of moving bail
petition for his husband.

The team visited the
residence of Mr. Kalyan Dewan, Professor of Kalimpong College and one of the
elected members of the Executive Committee of GTA. The team met Mrs. Gouri
Dewan, wife of Prof Dewan and came to know the following. While Prof. Dewan was
on his way to attend a public gathering in Darjeeling in his own vehicle on
August 12, 2013, he was requested by the police on civil dress to come to the
police station for a discussion with the IC. Once he entered into the police
station he was informed that he had actually been arrested. No warrant was
shown to him. His family members were not informed about his arrest by the
police. Prof. Dewan was sent to Jalpaiguri police station and was produced
before the judicial magistrate of Jalpaiguri court the following day. He is now
under jail custody at Jalpaiguri. Mrs. Dewan and her three school going
daughters have been able to meet husband/father only once during this one and
half month.

The team then visited
the residence of Mr. Nima Tamang, an elected member of GTA and met his wife
Mrs. Tina Pradhan (Tamang). The team came to know from his wife that police arrested
Mr. Tamang on August 15, 2013 at 5 p.m. from the Guest House of Uttarbanga
Krishi Vidyalaya (UBKV), Kalimpong. But, while he was produced before the
court, police reported that he had been arrested from a place near Nepal
border. Mrs. Tamang expressed her apprehension before the FFT members that
police have been trying to falsely implicate her husband with the charges of
maintaining link with the Maoist group of a foreign country in order to get
their support in favour of their on-going movement. In this case also, neither
the arrest memo was issued, nor was the arrest warrant served. His wife also
informed the team that the police, in order to prevent her husband from getting
out of jail custody on bail, have been continuously implicating him with newer
charges.

At
Darjeeling on 19th September, 2013:

The team reached the
office of CPRM Head office at Darjeeling. Mr. Chhoton Das, Secretary, Bandi
Mukti Committee explained the purpose of visit. The team then had a meeting
with Mr. Akash Thapa, Mr. Sunil Rai in presence of several media persons. After
completing the dialogue at CPRM office and taking note of every details of
arrested activists, the FFT then proceeded to visit families of few arrested
activists.

Meeting
with the family members of activists who are in Jail custody:

The team first visited
the residence of Sri Subhomoy Chattopadhyay.
Mr. Chattopadhyay, owner of the Darjeeling Tailoring House, is an
elected Councilor of Ward no 36 and also official spoke-person of GJMM. He was
arrested on August 13, 2013 at night12.15 a.m. from his residence without
producing any warrant of arrest. No arrest memo was also given at the time of
arrest. The team came to know from his family members that due to heart problem
Mr. Chattopadhyay has been transferred by the police to North Bengal Medical
College but no proper arrangement for treatment has been made by the
administration. All investigations suggested by doctors have been arranged by
the family members. Family members of Mr. Chattopadhyay have complained that
the administration has been trying to prove him as a mental patient and has
been administered medicines of mental disease. The situations of the family
worsen further due to issuing of arrest warrant against his wife Mrs. Anita Chattopadhyay.

After that the team
visited the residence of another arrested activist Mr. Narayan Pradhan. Mr. Pradhan
who is the Secretary of Darjeeling Town Committee, GJMM, was arrested on August
7, 2 013 at 11 p.m. from his house without any warrant of arrest. His wife Mrs.
Sabita Pradhan explained in details before the team how administration implicated
his husband in various new cases since the date of his arrest. Because of this
revengeful attitude of the administration he has not been able to come out from
jail custody in spite of granting bail by the judicial magistrate.

While the team was about to leave Darjeeling we received the information about the arrest
of Mrs. Nira Sharma, Councilor, Ward No-1 of Darjeeling Municipality. She has a
son and no body is there at home to look after the boy. Presently Mr. Amit
Chettri, a neighbour of Mrs. Sharma is taking care of the boy. Mr. Amit Chettri,
not being financially very sound, has been going through acute hardship in
order to maintain the additional burden of the boy.

The fact finding team
made every effort to meet police and administrative authorities but could not
succeed to get appointment of any of them.

The details of
submissions deposited at Kalimpong and Darjeeling before the team that includes
names of arrested persons, location of residence, location of jail, and sections
of charges of IPC etc are given in the Annexure-I and Annexure-II
respectively. However, following is a summary of general and common findings
that have been observed by the fact finding team:

a)List
of arrested activists includes elected representatives of GTA, college
professors, teachers, municipal councilors, students, unemployed youth, petty
businessmen, footpath hawkers and common citizens. Even an arrest warrant has
been issued against an ailing cancer patient Mrs. Goma rumba.

b)Very
few are named specifically either in FIRs or in general diaries of police, but
in several cases administration have mentioned citizens of certain localities,
like 41 Suruk Sampa, as unidentified persons whose figure run into hundreds. It
has created a sense of fear of possible arrest among the whole population of
that locality.

c)Each
and everyone was arrested without serving any warrant notice,

d)The
mandatory and legally binding procedure of issuing inspection and arrest memo has
not been followed in any of the cases of arrest.

e)None
of the arrested activists was given so far the status of political prisoners
and, thereby, everyone has been denied his/her rights and privileges.

f)In
spite of availability of space for jail custody in the hill, a large section of
arrested activists were sent to either Jalpaiguri or Siliguri jail. Considering
the time and financial constraint, it has been made difficult to visit arrested
activists at jail by the family members for a few and quite impossible for the
rest.

g)Though
it was agreed upon and had been included as a provision in section 29 of GTA
agreement that pending cases against all participants of Gorkhaland movement
barring the cases of murder would be withdrawn, many have been arrested now for
the old charges.

h)Documentary
evidences of several instances of imposing newer charges against a section of
arrested activists have revealed the vindictive and ulterior attitude of the
police and the administration. In order to prevent from getting out of jail
custody Police have been continuously implicating many with newer charges once the
court grants their bail petition.

Signatures of the
members of the Fact Finding Team on behalf of Bandi Mukti Committee, West
Bengal:

Wednesday, July 10, 2013

The
author of this article, Soumitra Ghosh, is an activist working among forest
communities in the area. This brief paper, based mainly on personal experiences
gained in past one decade of working among the project-affected
communities, attempts to trace a narrative
of development, environment and people that has now become typical in the
Himalayan region.

The gorge of the glacial Teesta river in
sub-Himalayan West Bengal has recently witnessed large-scale construction
activities: National Hydroelectric Power Corporation (NHPC), in collaboration
with West Bengal Government are building two ‘low’ dams(Teesta Low Dam Project,
TLDP-III and IV). These are on the North Bengal part of the river. The Sikkim
part already has several, and more coming up. The project, mired in
controversies since its start, remained thoroughly undemocratic and illegal:
gross violation of the laws of the land and the project authorities’ arrogant
disregard for possible environmental fall-outs marked it. Dissent of
communities living in the scattered forest villages inside the gorge, and
villages in higher valleys were smothered first with promises of jobs and later
repeatedly, with coercion, in active connivance with major political parties of
the region. The work which started in 2003 is far from complete, but one unit
of TLDP-III has reportedly been commissioned in December 2012. Which means that
the river is no longer flowing in an approximately 12 Kilometre long stretch along
National Highway 31A that goes to Sikkim. More than 400 families in three
forest villages living in the gorge, mostly uncompensated and ignored, now
await submergence of their homes, wayside shops that provided them livelihood
and whatever little cultivated land they had.

Background: How it
all began

National Hydroelectric Power Corporation(NHPC) started large-scale
construction activity at two sites at Kalijhora and 27th Mile on NH
31A for building of dams in 2003-2004. A project which generated
controversy since inception, TLDP means Teesta ‘Low Dam’—even when dam heights
are 32.5 and 30 metres. The globally accepted definition framed by the
International Commission on Large Dams (ICOLD), categories dams above 15
meters as large. One also misses the point of calling a project ‘run of the
river’ that is going to create a reservoir, impound water and submerge several
hundred hectares of forest land.

The plans for
taming the Teesta River flowing through almost the entire length of Sikkim and
then entering North Bengal, are not new. Since the 1970’s a proposal has been
in place for harnessing the river in six stages the mountainous parts of
Sikkim. Of this, only one proposal to construct a 510 MW, 96.5-m high dam in
Sikkim has come through. When the project was granted environmental clearance,
one of the conditions was that no more projects would be developed on river
Teesta in Sikkim till a carrying capacity study of the Teesta River Basin is
completed. In the case of the two TLDP dams it would have been logical to wait
for the results of the carrying capacity study mentioned above, before going
ahead with the project—since the study is looking at the same river basin on which
these projects are proposed.

TLDP-III has
already been accorded environmental clearance by the MoEF in July 2003, and TLDP-IV
not long after. The MoEF had earlier refused site clearance for the TLDP-IV on
the grounds that it would entail diversion of land within Mahananda Wild Life
Sanctuary, which necessitated slightly relocating the site.

The proposal for the so-called ‘low’ dams(TLDP) on the river Teesta
generated a lot of controversy before these were finally cleared by the
Ministry of Environment and Forests, Government of India (MoEF, GoI).
Environmental groups as well as hydrologists, geologists and biologists from
North Bengal and all over the country opposed the proposal on the grounds that
the Environmental Impact Assessment(EIA) process for the projects was
incomplete, non-transparent, and non-participatory, that it did not involve the
resident populations in and around the project sites, and most importantly, the
EIA either contained inadequate data on possible environmental impacts or deliberately
suppressed and falsified important scientific data on those impacts. There were
also enough instances of violations of Environmental Protection Act.

The EIA Reports and related Environmental Management Plans(EMP) for
TLDP-III and IV admitted that the hillsides around the project site were
geologically fragile, and that any tampering with the slopes might result in
severe landslides, increasing the danger of siltation in the reservoir, and
affecting the NH 31. In fact, the Geological Survey of India(GSI) Report on the
projects indicated that construction activity and damming the river might not
only re-activate dormant slides in the area, but also open new slides. Both the
GSI Report and the project EMPs prescribe elaborate slope protection measures
along the reservoir rim that stretches for more than 7 Kms. from the project
sites in both TLDP-III and IV. The said Report and Plans also prescribed
special measures for the existing slide zones along the proposed reservoir
rims. Surprisingly, the environmental clearances given to both TLDP-III and IV
ignore the geological impact aspect, as if it was taken for granted that the
project proponents would carry out the protection measures as prescribed.

A brief look at the chronology of events that marked the beginning of
TLDP-III reveals how existing environmental statutes were violated at will.

Colossal violation of the law:
Chronology of TLDP-III

Power Projects
in India need mandatory clearances from the Ministry of Environment and Forests
(MOEF), Government of India. These clearances are subject to the implementing
agency meeting all ‘statutory obligations’, which include, among other things,
an elaborate, ‘participatory’ and ‘transparent’ Environment Impact Assessment
(EIA) exercise. This process gets overseen by State Pollution Control Boards,
and ‘neutral’, accredited organisations are entrusted with the study. Teesta
Low Dam Project EIA was done by North Bengal University, and it commissioned
the Geological Survey of India, Kolkata, with the geological impact component.
We will come to that later.

On November 14,
West Bengal Pollution Control Board issued the public hearing notification(public
hearings are mandatory in all projects that require environmental and forest
clearances, according to Environment Protection Act 1986) for TLDP-III. The
notification did not mention the EIA, and says that only the Executive summary
of the Detailed Project Report (DPR) will be available for public scrutiny. If
we remember that the law demands all project related documents have to be
placed in public domain well before the date of the hearing, the illegality
starts from here: till the last week of November—10 days from the date of the
notification—the Siliguri Regional Office of the WBPCB could not show the
Executive Summary. The Executive Summary of the Project was not available in
Nepali—the major local language—till December 6, 2002, which constituted
another violation. After local groups such as NESPON (North-Eastern Society for
Preservation of Nature and Wild Life, based in Siliguri) challenged legality of the Public Hearing and
the EIA process for TLDP stage–III, NHPC—and not the WBPCB—sent a copy of the
EIA to the PCB Siliguri Regional Office on the evening of December 09, 2002,
just 10 days before the hearing and 20 days after the publication of the
Hearing notification. The EIA was available only in English. A fresh Public
hearing notification was issued on 13.12.3003, and the programme was
rescheduled for 3.1.2003. Point to remember: according to the EIA rules, a
clear 30-day period should separate the dates of notification and hearing, and,
on the date of the hearing, all relevant documents including the EIA and DPR
should be available for Public Scrutiny, in major local languages.

EIA findings distorted, suppressed

Going by the
date given on the EIA report cover, North Bengal University submitted the
‘complete’ report in August 2002. But important portions of the GSI report (the ‘Report on the
geological and geotechnical investigations’ by Geological Survey of India,
Kolkata, as part of the EIA.) were not included in the Report.

NBU submitted the ‘complete’ report in August 2002. The GSI report was
based on data collected during one full field season (2001-2002). Because there
was a period of just five months between the submission of this report and
preparation of the EIA, a similar or parallel study could not have been
conducted within this period. It becomes clear from the EIA that the GSI report
was the sole source of geological data included in it. In this context,
non-inclusion of a crucial section of the GSI report in the final EIA was inexplicable
(subsection 3.5 of the GSI report that deals with the project impacts during
the operational phase). The EIA not
only excludes this section but goes on to say (subsection 8.5) that
there will be ‘no land environment impact during the operational phase’ of the
project. The Entire Section 8 of the EIA (section titled ‘summary of
environmental impacts) contains no information on geological/geomorphologic
impacts, as if such impacts do not exist).

Some of the significant dropped/suppressed
portions from the Report:

1.Executive Summary:

a. Structure and Tectonics

‘…. It may be mentioned here
that a) neo-tectonic movements are very common for such a juvenile organic belt
like Himalayas and b) the Main Boundary Thrust (M.B.T) passes through the
reservoir of TLDHP-IV (-2.5-3 Km u/s of the proposed dam axis and has been
reported to be non-tectonically active’.

Though the ‘dam axis’
mentioned here refers to the previously proposed site, the M.B.T location is
perilously closer to the new site.

b. Landslides:

‘A number of active and
dormant landslides are present within the project area due to partly to
anthropogenic activities and partly to adverse geological condition/ slope
morphology. After impoundment, due to
the effects of changing pore water pressure within the slope wash/debris
material chances of mass movements in the form of new landslides, reactivation
of fossil/dormant slides and further destabilisation of already vulnerable
slopes cannot be ruled out. Proposed constructional activities may also cause
landslides.’

Chapter II

Site specific geological and
geo-technical parameters

Section 2.18.

‘Though NH 31 A will be at a
much higher elevation of the FRL of Stage IV dam; but in those stretches where
mudstone and clay stone will come into contact with the reservoir water,
stability of the existing road bench may become vulnerable.’

2.19

‘two active slides on the
road section are located between 7 km and 8.3 km. Both of these are
rock-cum-debris slides and their toes have reached up to the existing Tista bed
level. So to protect the toe of these slides from the erosion during high
discharge, protection in the form of retaining walls will have to be constructed
upto the FRL.’

2.20

‘Evidences indicate that the
slide at Berrik has been caused due to planar and wedge failure of intensely
jointed and sheared rock mass and perhaps initially triggered by toe erosion by
Tista. ….Further there are possibilities of instability which may be caused
by short duration high intensity rainfall in that area.’

2.21

‘The most visible active
landslides within the limit of the project area affecting the NH21A are at 8.3
km slide (Fig 8) and 7.1 km slide. Both the slides are rock-cum-debris slides,
which have been reactivated during the Monsoon period of 2001.

The slides have severely
affected the road bench of NH31A making the width of the road bench shorter.
Any further destabilisation / sliding at these locations will invariably cut
off the vital road-link.

Sufficient protection
measures, well-planned drainage networks etc. are essential at these slides
location to check further deterioration, otherwise fresh sliding would
definitely enhance supply of silt into the reservoir and cause blockage of the
river channel. Toe protection wall up to FRL level will have to be planned.’

3.0

‘AS per BIS code is
1983-1975, design seismic co-efficient (µh) as per seismic
coefficient method in zone IV comes around 0.1. The design of all the
appurtenant structures at both the project sites should be considered as per
the seismic consideration mentioned above. Hence it should also be kept in mind
that a) neo-tectonic movements are very common for such a juvenile organic belt
like Himalaya and b) the main boundary thrust (MBT) passes through the
reservoir of TLDHP – IV (i.e., about 2.5-3 km (u/s of the proposed dam axis)
and has been reported to be neo-tectonically active.’

3.5

‘After impoundment of the
reservoir, the water level in the reservoir area (mostly restricted within the
main Tista river valley) will rise considerably. Accordingly, the slope wash /
debris at the toe will become surcharged with water and pore pressure within it
may considerably increase. The condition may deteriorate when fluctuation in
the reservoir level takes place. As a consequence the strength parameters of
the slope mass will decrease and it may become susceptible to destabilisation.
Thus triggering of new landslides, or reactivating old/dormant slides and further
destabilisation of already active slides cannot be ruled out. The similar
conditions also prevail for TLDHP-IV and necessary precaution may have to be
taken.’

The EIA not only
excluded these portions but the Entire Section 7 of the EIA (section titled ‘
Environmental Impacts’) contained no information on geological/geomorphologic
impacts, as if such impacts did not exist!

The EIA report was full of incomplete/partial data. Some of these can be
cited:

1.Section 2, subsection 2-4: Seismicity: The EIA admitted that the site-specific
seismic design parameters were being ‘studied’ and not yet available at the
time of writing the report. Because the project area falls within the seismic
zone IV, any major construction work in this zone need to have suitable seismic
co-efficient incorporated in its design. If design parameters were unavailable,
how could NHPC talk about construction datelines (Executive summary, DPR)?

2.Section 2, subsection 2.5.2:
Reservoir Sedimentation:
Though Subsection 2.7(watershed) mentioned that out of 19
watersheds/sub-watersheds in the project area 5 have high and 3 others very
high priority status in sediment yield index, and none of the watersheds is
safe from the danger of erosion and destabilization, the subsection on reservoir
sedimentation gave no data on possible cumulative sedimentation in the
reservoir. Moreover, it arbitrarily mentioned that ‘retrogressive silt flushing
near the intakes is effective’, and ‘no separate silt exclusion arrangement has
been provided’. No further explanation or clarifications for these were
provided.

The EIA was based on data collected from a study area that extended to 7
Kilometers upstream from the project site. Thus it ignored all watersheds—and
the slope stability factor in them—beyond that point. In a river like Teesta
that flows through inherently unstable terrain and carries an average annual
load of 3-4 Metric Tonnes of silt, a 7-kilometer radius can only provide
incomplete sedimentation data.

The EIA said (2.5.2) that gross storage in the reservoir will be 18.36
Mcum at FRL 208 meters and live storage has been computed at 11.57 Mcum. Hydrological
data given in the DPR and EIA did not take into account the possible increase
of discharge and ensuing floods caused by glacial melting in the upstream. This
omission posed serious questions to the credibility of all the hydrological
computations used in the DPR and the EIA.

The EIA ignored the downstream impact factor on the pretext that because
the project was run-of-the-river and supposedly would not impede the natural
discharge of water, there would be no additional danger of floods downstream.
The fact, however, remained that the project will cause impoundment of water on
a large scale on a glacial river, in an area with perennially unstable valley
slopes and with watersheds with high sediment yield index. Moreover, this was
not really a run-of-the-river scheme as the project authorities stated, because
it involved impoundment of water and creation of an artificial reservoir.

The GSI report mentioned that construction of the reservoir and
continuous storage of water would increase pore pressure on the adjoining
slopes, leading to toe erosion and slope destabilization, all these factors would
finally affect the discharge and the sedimentation processes and might lead to
the weakening of the barrage structure, thus causing serious impacts on the
flow of the river downstream.

3. Section 2, subsections 2.6, 2.21: slope instability and soil
erosion: These subsections made it clear that road building and tampering with
slopes in the project area had already caused much damage: ‘In many cases,
roads are improperly aligned on weak and unstable rock formation increasing
their susceptibility to damage by landslide. Blasting during road making is
equivalent to mild seismic activity in the region causing landslides and
slips.’(2.6). Further, it said ‘ Water disposal arrangements are not sufficient
to cope with a rainfall of high intensity’ (2.21). In spite of these findings
the EIA gave a clean chit to the proposed construction of a total 14.5
kilometers of new roads in the area, in 10 separate stretches (Section 8,
subsection 8.5), just by saying that slope stabilization work and plantation
activities would be taken up. The report was silent about mitigating the
impacts of construction activity during road and barrage building in an area
where ‘ a minor tremor can act as a trigger and reduce the shear strength and
initiate sand and mudflows’ (2.6)?

4. The EIA report, mentioned the Environment Management Plan(EMP)
several times. The plan was not available for study before the public hearing. This
showed that the project authorities anticipated no awkward questions; perhaps
they thought that the authenticity and effectiveness of the plans was beyond
question? The EIA said that local
communities were involved in all stages of the EMPs. Community/communities in
the project area knew nothing of such EMPs, or the EIA for that matter.

At a public meeting in Siliguri in April 2002 organized jointly by NESPON
and SANDRP(South Asian Network for Dams, River and People), the then Chief
Engineer of the project openly admitted that the estimated life span of the dam
is fifty years. This, along with the concerns about Seismicity, sedimentation,
glacial lake outburst floods and landslide induced floods raised many until now
unanswered questions about the economic viability of the project.

Manipulating
Truth, and Deceiving people: TLDP-IV

In other words all portions and information
in the EIA report that could go against the Project and act as potential
hurdles in its obtaining environmental clearance had been deliberately dropped,
making the entire EIA exercise manipulative, illegal, potentially deceptive and
against public interest.

The same disregard for accountability and
transparency accompanied the EIA process of TLDP-IV. The EIA in this case too
was based on the same GSI report, and in the similar manner only an edited
version was presented.

The GSI report made it abundantly clear that
the project would have severe impacts on the project area; the all-important
road link NH31/31A might be permanently damaged with dangers of soil erosion
and landslides increasing, and faults including the main Boundary Fault
touching and passing through the reservoir area, there would always be dangers
of earthquakes. Because of such earthquakes, landslides and other factors like
cloudburst, more rainfall and glacial lake bursts in the upstream the dam might
leak, or burst, thus endangering the entire downstream population in the Teesta
basin.

These were facts of which the people in the
project area and in the larger Teesta basin area should have been made aware,
so that they could take informed decision about the Dam, and these were facts
which the public hearings should have discussed.

TLDP-IV EIA:
Full of inaccuracies, half-truths, omissions

The TLDP-IV EIA was equally full of
incomplete/partial data. Some of these are:

1.Section 3,
subsection 3-8: Seismicity:

The EIA admitted that the site-specific
seismic design parameters were being ‘studied’ through IIT, Roorkee and not yet
available. Because the Project area falls within the seismic zone IV, any major
construction work in this zone need to have suitable seismic co-efficient
incorporated in its design. If design parameters were unavailable, how could
the NHPC authorities talk about construction datelines (Executive summary,
DPR)?

Surprisingly enough the EMP for TLDP-IV said
that seismic design parameters were available, but did not incorporate
information on that.

The project area falls within the seismic
zone IV on BIS map. In his written objections to the TLDP-IV EIA, Debashis
Chatterjee, a renowned geologist, and ex-Director, GSI, Eastern Region pointed
out that in the case of the Teesta, extra caution had to be exercised, because
the river has an extremely high net gradient, and occupies a tectonic feature
transverse to the Himalayan structural grain. This transverse feature lies
along the extension of the Jamuna shear fault (along the western edge of the
Meghalaya plateau), which has been identified as a major fault zone in eastern
India. Dam construction along the fault zone may give rise to Reservoir Induced
Seismicity. His objection note further said that at least eight earthquake
events of magnitude larger than Mb 6.0 were known to have occurred between 1897
and 1990 in the "in the vicinity of this area" as per GSI report, and
also the EIA (Table 3.12).

The Subsection 3.3.2 (watershed) mentioned
that more than 60 % of the total watersheds/sub-watershed area in the have high
and very high priority status in sediment yield index, and none of the
watersheds is safe from the danger of erosion and destabilization. Despite
saying that ‘the initial sediment deposition rate shall be very high depending
upon the sediment load generated upstream’ (sedimentation 3.3.3) the EIA carried
no further data on possible cumulative sedimentation in the reservoir.
Moreover, it casually mentioned that ‘the spillway crest..at 157m.This would
ensure that sediment accumulation near the dam would not exceed beyond the
spillway crest..’: No further explanation or clarifications provided.

3.Hydrology:

The EIA said (3.3.3) that gross storage in
the reservoir would be 36.63 MCM at FRL 182.25meters and live storage had been
computed at 7.91 MCM. Beyond these, the EIA gave no hydrological data, and did
not explain how these figures were obtained. The storage figures given in the
DPR and EIA apparently did not take into account the possible increase of
discharge and ensuing floods caused by glacial melting in the upstream.

The heavy concentration of rainfall within a
short period is common in Eastern Himalaya. The dam-managers would be compelled
to release water at the peak of monsoon and that would inevitably cause flash
floods in the lower reaches. Information on glacial behaviour and its impacts
was therefore necessary to analyse the impacts on downstream populations and
the environment.

4. Flora and Fauna:

The EIA mentioned at least 7 rare and
threatened plant species (4.4.7) in the study area, but said that there would
be no significant impact on the plant communities, because the area under
submergence harbours no such species. Apparently the EIA ignored the fact, that
the impact would not be limited to the actual submergence area, and plant
communities all along the Catchment area and the river gorge would be further
exposed to additional anthropogenic interventions, and increased ecological
instability induced by soil erosion, soil degradation and dust accumulation
during both the construction and operation phases.

The project submerged 338.05 hectares of
forest land rich in biodiversity.

The EIA/EMP mentioned impacts on Fish
migration (10.6/EMP), but beyond suggesting a fish ladder, did not clarify how
this impact would be mitigated. Among the fish species likely to be affected by
the dam, there would be endangered Himalayan species like Tor Tor and Tor
PuiTar.

The hoax of
environmental management

The EMP listed engineering and biological
measures as part of the proposed Catchment Area Treatment (CAT) Plan. Judging
by the magnitude and the intensity of the problem, the proposed measures were
pitifully inadequate. The EMP budget on this head allotted just Rs. 1600 per
hectare (Table 5.7/B in the EMP) distributed over several years for proposed
engineering measures in 11740 hectares of areas ‘under very severe and severe
erosion category in priority sub watersheds’ (5.4.1/Table 5.6 in the EMP ).

All these meant that sedimentation would not
be halted, and the river as well as the reservoir would have a perpetually
increasing silt load. In a river like Teesta the silt would be mixed with
rocks, boulders, and trees. This load would likely be trapped upstream of the
dams and the reservoir is likely to be choked in no distant period.

As part of Reservoir Rim Treatment, the EMP
listed several engineering measures to tackle landslips/landslides. While the
GSI report recommended ‘toe protection wall upto FRL level’ all along the
affected stretches, the EMP suggested only 500 CuM of toe Protection wall in
each Slide area, with another 500 CuM of retaining wall.

Even for a pre-dam situation, these measures were
inadequate and could not be expected to ensure sustained slope stability. With
dangers for toe-erosion and slope destabilization increased manifold in the
post-reservoir situation, how can one reasonably expect that 500 CuMs of RCC
walls would be effective in slides covering several hectares of severely degraded
and unstable land? It should have been kept in mind that blasting and slope
modification during the construction of dams would obviously invite further
landslides, threatening life and livelihood of the people.

The project would generate 20,67,500 cuM of
muck. The EMP, beyond saying that 6.75 hectares of downstream area (in two
plots, 750m, and 250m downstream of the project site) would be used for muck
storage, and these areas would be later restored through plantation, remains
extremely vague on what measures would be taken to prevent spill over of muck
into the riverbed, especially during the three-four months of monsoon.

This meant that lager parts of the muck would
flow into the river, increasing the threat to the ambient water quality, and
polluting the river beyond redemption.

Participatory EIA?

The EIA said that local communities and NGOs
were involved in all stages of the EIA process. However, such communities/NGOs
were never found, neither the methodology adopted for such participatory
exercises. NHPC and WBPCB failed to furnish a list of
people/organizations/institutions involved in this exercise.

The EIA/EMP showed only 11 families in
Kalijhora Bazaar as project affected. But the reality is all the people in the
Catchment area (25,000+ families, and especially 12700+ families residing in
the Right Banks of Teesta—the EIA, 6.7.2, table 6.4) would be affected by the
project that would cause severe damage to the sole road link of the area
NH31/31A, and adversely impact on the overall geomorphology of the catchment
area. Close proximity to the Dam site makes another 300+ families in 5
Downstream Villages along the NH31 also extremely vulnerable to flash floods
and soil erosion.

This meant that the project might affect the
livelihood and homes of all these people, and what use an Environment
Management Plan and Relief and Rehabilitation plan that did not address these
concerns are incomplete and inadequate.

The Farce of Public Hearing

Despite protests by NGOs, community organizations and concerned
individuals, public hearings for both TLDP-III and IV were held more or less
according to schedule: the first

in a village called Deorali, way above the dam site, and the second one
in Kalijhora Bazaar.

Nothing could have been more farcical than the so-called ‘Hearings’. A
large number of people from the project affected villages and adjoining areas
attended the TLDP-III hearing, but they had neither any information about the
project nor any idea about the EIA. In spite of a mass petition (signed by 84
community representatives present at the Hearing venue) demanding postponement
of the process till the EIA report was available in local language, and
objections by NESPON citing illegality of the exercise, the Hearing was
conducted.

The hearing opened with a lengthy speech from the NHPC representative in
praise of the project. After that, two panel members called upon the
participants to not to oppose the project! In course of the Hearing the Chief
Engineer of WBPCB admitted that that they could not make the necessary
documents available during the first notification (14.11.2002) and apologized
for it! He evaded the complaint that complete project documents were not
available even at the time of the subsequent notification (13.12.2002), and
moreover, the second notification did not give a fresh 30-day period for filing
objections. Neither the WBPCB nor NHPC representatives could clarify why the
EIA report excluded the findings of the GSI (refer to our letter dated
12.12.2002).

Demands raised by the local people included inclusion of all villages in
the project area in the RR plan as 'project affected villages', and that the
rehabilitation process was completed much before the actual commencement of the
project work. More interestingly, people demanded that NHPC should enter into a
legal agreement with the villagers, guaranteeing the bridge over Teesta and
other amenities they were talking about (some villagers in fact brought and
submitted an typed out and well-drafted agreement on court paper).

In the public hearing for TLDP-IV held in September 2004, project
authorities and political parties supporting the dam ensured that truckloads of
outsiders, many of them known ruffians, were visible in the venue: this author
was not allowed to complete his submission, a representative of a Siliguri NGO
was assaulted by the local Panchayat member belonging to a political party on
the dias while opposing the project in his submission, and the chairperson of
the panel kept on blatantly supporting the project. Because of adverse
submissions by many, the hearing went on till late evening; and this author
found himself surrounded by a group of hoodlums towards conclusion: it was a
miracle that he escaped unhurt.

NHPC reportedly its ‘community development funds’ to kill possible
protests: in fact, in Kalijhora, an anti-dam protest by local youth was
engineered in 2002, immediately after the NESPON-SANDRP meeting was held, and 4
years before actual project work would start. The leaders of this ‘movement’,
in which some of the local NGOs participated, were all generously compensated.
NHPC allegedly made similar ‘arrangements’ with other NGOs who later raised
objections during the hearing.

In TLDP-III,
visible public anger and dissent failed to ventilate, the then local councillor
of Darjeeling Gorkha Hill Council, and the most influential politician of the
area kept on threatening people with ‘dire consequences’ each time a protest
meeting took place. The same coercive practice continues to this day.

Environment,
livelihood in danger: construction
of dams and the aftermath

Construction work at TLDP-III
site below 27th Mile started in 2004, and at TLDP-IV at Kalijhora,
in 2006. A Monitoring Committee(the stipulation was in the environmental
clearance) was constituted for TLDP-III on 31.05.2005. In both sites, the
natural flow of the river was blocked, and the river was forced to pass through
narrow diversion channels. Dynamite was used rampantly at TLDP-III sites, and the slopes on both
banks of the river—along NH 31A near 27th Mile, and Nazeok forest
village—were entirely denuded of existing vegetation cover. At TLDP-IV site at
Kalijhora, slopes on the left bank (downstream) were similarly affected. No
slope protection activity at the dam sites, (and along the reservoir rims, and
potential slide zones) was undertaken, at least not until

half the roadside caved in August 2006 in a new slide just above the
TLDP-III site at 27th Mile. Even then, only temporary guard walls
have been erected to halt the slide only at that particular site, and all other
areas have been left unprotected.

The six-monthly Progress Reports on environmental compliance (for
TLDP-III) NHPC has been submitting to the MoEF according to one of the
clearance conditions show that important environmental issues have been left
unaddressed while the construction work proceeded in full swing. The EIA/EMPs
for both the projects mentioned that because many of the watersheds and
sub-watersheds in the project area were erosion-prone and had high
sediment-yield index, catchment-protection work in form of improved drainage,
new plantations and guard walls was an environmental priority. However, as the
last available six-monthly Progress Report shows, nothing has been done so far
for catchment-protection.

The Progress Reports do not include any information on reservoir rim
protection work.

The Reports mention that a committee has been formed to expedite Relief
and Rehabilitation(R&R) work, and that the committee has had several
discussions with community members and affected people. The reality, however,
is that as off now, nobody in two roadside forest hamlets of 29th
Mile and Geilkhola has agreed to the compensation terms, and many raise
questions about why the guard walls promised by NHPC are not coming up.

The Flood on 27th July,2007

Torrential rains continuing for days resulted in the so-called flood on
27th July, when a swollen and angry Teesta tore through the paltry
embankments, and came back to its original channels at both TLDP-III and IV
sites, submerging the entire worksites at both places. Heavy dredgers and
makeshift construction workers’ shanties were swept away alike, and workers
have to be rescued at Kalijhora. Unconfirmed Reports suggest some casualties at
27th Mile, but that could not be verified.

A similar incident,but on a smaller scale, occurred on 17th
July, when the river first breached the Kalijhora embankments.

Landslides

At least 14 new landslides, big and small, opened up between Kalijhora
and 29th Mile, on both banks of Teesta. The 27th Mile
slide is still active, and the guard walls look inadequate. The Slide starts
from NH31A, and goes straight to the TLDP-III site. A new and huge slide has
opened within 2 kms of the TLDP-III site, affecting the road. Between TLDP-III
and IV, a new slide has opened on the right bank(downstream), and yet another
on the left, near the old Berrick Slide. The new road that NHPC built to
TLDP-III site was caving in. Lateral cracks could be seen in the sandy soil of
the entire slope. No slope protection work was visible along the road. All old slides have worsened and more slides
have opened up on NH 31A since the disastrous earthquake in Sikkim and
sub-Himalayan North Bengal on September 18, 2011.

While 29th Mile and Geilkhola are roadside forest villages
shown as project affected villages in the DPR(Detailed Project Report) EIA,
Karmatt is a forest village now facing destruction by impending landslides
aggravated by TLDP-IV construction work just below the village. The 29th
Mile, Geilkhola and the Ryiang(located just below the TLDP-III dam) villages
face certain displacement, judging by the high water mark on the Tessta gorge
walls placed by NHPC, and now, the steadily rising level of the reservoir in
TLDP-III. The NH 31A, the arterial road
connecting India with China through Sikkim has started caving in several places
all along the stretch from Sevoke Coronation Bridge to Teesta Bazaar, even
before the dams were commissioned. In a surprising development, the GREF under
the Ministry of Defence has begun constructing a re-aligned road from the
TLDP-III site at 27th Mile to Teesta Bazaar.

The Gramsabha of 29th mile Forest Village has passed resolutions
to the effect that the dam-building activities by NHPC
in the 27th Mile TLDP Stage-III are in direct violation of the Forest
Rights Act: “it impinges upon our constitutional rights to live, cultivate and
otherwise use the forest land in which we have been living for nearly a century
now’, the Resolution says, ‘NHPC activities pose a direct threat to our village
in total violation of the project holder’s commitments as expressed in the EIA
and the EMP for the project: while both documents mentioned that only the
low-lying river bed areas of our village would be affected, the project in fact
affects the entire village at present. We find that the water level in the
TLDP-III reservoir will reach the present level of NH 31A and beyond, hence
putting our village in great danger of submergence, soil erosion and fresh
landslides.

... the
re-alignment of the NH 31A has been affecting our village both ecologically and
economically—the road construction has been affecting forests under our Gram
Sabha—forest trees had been illegally felled without first seeking and
obtaining any permission by the Gram Sabha, and thus the forest clearance for
this has apparently been obtained under false premises. The re-alignment will
also destroy our livelihoods as the present NH 31A is our economic lifeline.

‘By virtue of... powers vested...by the Section 5 of
the FRA’, the Gram Sabha decided that ‘as both the TLDP-III and the
re-alignment of NH 31A directly affect our cultural and natural heritage and
obstruct us in discharging our duties as prescribed in the FRA 2006, such
activities must stop until the issue is amicably settled. To our utter dismay
we find that work in both areas have been going on, in total disregard and
utter violation of the laws of the land”.

Erosion

For the first time in recent years, Teesta has started eroding its left
bank forests and agricultural fields near Mongpong this year, in addition to
the right bank, where erosion continues. The Irrigation Department Spur on the
right bank was gone, affecting ChumukdangiVillage in a bad way.

All villages between Sevoke and Gazaldoba Barrage further downstream are
in danger from Teesta erosion, and flooding. Teesta keeps on changing its
course even beyond Gazaldoba, and the river has come back near JalpiguriTown.

In a petition submitted to the WBFFCE(West
Bengal Fact Finding Commission on Environment--non-official, chaired by Justice
Bhabbati Prasad Bannerjee) in Siliguri on October 12, 2012, community
representatives from TLDP area raised following questions:

1. Why did NHPC start construction without taking adequate safeguards?
How could the work at TLDP-III continue without first assuring that all
existing slides and vulnerable slopes are protected, especially after last
years slide at 27th Mile?

2. Why did NHPC not start the ‘rim protection’ measures as prescribed in
the EMPs? Is it for the reason that the Project does not have sufficient funds
to cover the costs? Already, the ‘catchment area treatment’ has been delayed for
TLDP-III because the project does not have the budget to cover the costs quoted
by West Bengal and Silkkim Forest Departments.

3. The TLDP-III progress Report say that compensation amount for the
affected families have been arrived at through discussions. However, several
families have not accepted compensation so far, and more than the compensation
they want from NHPC the guarantee that nothing wouldl happen to their village,
and the road on which their livelihood depends.

The petitioners demanded ‘urgent and time-bound redress’ in the
following:

A. Complete land-for-land rehabilitation in suitable locations and
adequate cash compensation for all the bonafide residents of Geilkhola, 29th
Mile and Karmatt from NHPC and the Government of West Bengal.

B. No further construction work in both project sites till NHPC
adequately complies with the EMP for TLDP-III and IV, particularly at TLDP-III,
in accordance with the Forest Rights Act, 2006 and the 29th Mile
Gram Sabha Resolution.

C. Adequate and proper restoration
of the NH 31A by NHPC. NHPC must ensure rim-protection measures, and watershed
conservation work as detailed in the EMPs.

In lieu of conclusion: excerpts from proceedings of hearing of WBFFCE, October 12,2012

;…Smt Meena Sherpa on behalf of 29th Mile Forest Village Gram
Sabha moved the petition mentioning thereto about the disastrous condition of
the village area surrounding Teesta Low Dam Project. Main Contention of the
petition that all villages between Sevak and Gazoldoba barrage further
downstream are in great danger from Teesta erosion and other calamities arising
from the Teesta Dam construction. It is also mentioned that Teesta river is
changing its course even beyond Gazoldoba and there is a chance for affecting
Jalpaiguri town also. It is categorically mentioned in the petition that NHPC
is continuing their work violating the condition of the EIA clearance for their
project. Petitioner also mentioned that compensation process of NHPC is faulty
and large number of people are not getting any compensation though there
property had been badly affected due to the construction of the dam and also
affect their existence in their homeland.

Considering the entire situation,
we are in view that the entire copy of the petition should be forwarded immediately
to the NHPC for their attention and for obtaining remedial measures. State
Disaster Management Dept. should also be kept informed about this situation by
which the petitioners may get justice immediately...…After going through the
papers and taking to the consideration of the submission we are in view that
during preparation of the EIA report precautionary measures are not considered.
We are inviting attention of the government that sustainable development is now
the key issue of the development process wherein “precautionary principles”
need to be followed otherwise during the course of development, mostly poor
people or downtrodden people face the music of disaster. In this instant case
downtrodden people of the locality have been badly affected(italics added)…’

According to the residents of 29th Mile and Geilkhola, who
now live in constant fear of drowning ever since the dam started to feel, the
local administration(here the BDO of Kalimpong) told them that NHPC is
‘considering’ some relief for the affected. However, because the villages do
not have tenural entitlements as yet--despite clear provision in Forest Rights
Act—the administration and the forest department treat these settlements as
‘encroachments’.

People from 24 forest villages in the Teesta Valley likely to be
affected by TLDP projects and a proposed
railway line to Sikkim recently formed a new Testa Sangharsh
Samittee(TSS) to press their demands. Not much could be achieved, though: NHPC
remains non-responsive as ever, and the ruling political party in the
Darjeeling hills apparently shares the administration’s view that these are
encroached villages and hence cannot demand compensation legally. It was heard
that party bosses told community representatives to wait till the water rises to
their homes; later, another leader ‘promised’ a ‘shifting within one month’.
Movements are bad, people were told, unless the party permits it. Because the
party resents ‘outside’ and ‘plainspeople’s’ interference in hill matters(this
became manifest, with ugly communal overtones after WBFCCE members visited TLDP
sites on October 13,2012), this author and his colleagues in NESPON could no
longer go and talk to the people freely and without fear. Meanwhile, sensing
that its violations crossed all acceptable limits, and might result in a
litigation soon, NHPC authorities are reported trying hectic damage control:
which usually translates into lobbying with the ruling party, and offering
meager and random compensation to a handful of people.